From the desk of …
Jim Avery
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Jim Avery
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DISCUSSION OF
CHRYSLER VAN RECALL-AIRBAG DEFECT
WASHINGTON, D.C., May 14, 2007 — Chrysler announced that it is recalling 400,000-plus Dodge Caravan and Chrysler Town & Country minivans from the 2005 model year. The problem affects Northern-state vehicles because road salt can cause airbag sensors to corrode, leading to possible failure of the safety system. The problem is with brass bushings on the sensors that could corrode and crack, letting water in to the airbag sensors.
Comment-A product is defective when it is ‘unreasonably dangerous’ to the ultimate user. That involves a ‘forseeability’ component. It was foreseeable that corrosion would cause the airbag sensors to become faulty, and therefore, the product is arguably defective and dangerous to the user, creating a cause of action for ‘strict product liability.’ This means the negligence of the user (in causing the accident) is not a defense, although it may be an offset to damages, subject to state comparative fault analysis.
Product liability statutes exist in most states, which govern the right to bring an action for defective airbag claims, as well as the comparative fault analysis. Most state statutes of limitation have a ‘discovery rule’ which allows for claims to be brought after discovery of a defect; however, statutes of limitation usually apply after an injury has occurred. A statute of repose exists in many states, such as Indiana, which prohibits strict product liability claims more than ten years after a product has been placed in the stream of commerce.
If you or a loved one has been injured or killed as a result of a suspected airbag failure, contact Avery Law Firm now with your questions. Free consultations.
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DISCUSSION OF PEOPLE V. RAMIREZ
No. 06SC71 (April 16,
2007), The People of the State of Colorado v. Juan R. Ramirez Expert Opinion Testimony –
Colorado Rules of Evidence 401, 402, 403, 702 & 705 “Reasonable Medical Probability/Certainty”
Speculative Testimony.
The Colorado Supreme Court overruled any cases that suggest “reasonable medical probability” or “reasonable medical certainty” is the current standard for the admission of expert medical testimony. The court confirmed the Colorado Rules of Evidence govern admissibility of expert opinion testimony.
With this decision, the Colorado Supreme Court has ‘lowered the bar’ on expert testimony, subject to traditional judicial discretion to decide if the testimony would be helpful to the trier of fact. I expect this case to have particular relevance to the issue of ‘proximate cause’ and ‘future damages’ in regard to medical testimony. Doctors frequently are unable to give testimony on these issues in terms that are certain or even probable.
Hopefully, this will also be applied to the issue of causation. In many cases, a doctor is not able to distinguish between equal possibilities as to the cause of an injury. The Ramirez case should open the door to this testimony, and let the jury decide between the possibilities based on the totality of the evidence.
DISCUSSION OF TORT REFORM
The New England Journal of Medicine recently reported that a Harvard study has found that the legal system successfully weeds out claims against health care professionals that have no merit. This comes as a surprise to the American Medical Association, and other medical groups and insurance companies, who have long contended that the laws regarding the liability of health care professionals are too liberal and that tort reform is necessary.
The study was conducted by the Harvard School of Public Health and Brigham and Women’s Hospital in Boston, found that 90% of all claims against health care professionals involved a severe injury; 26% of those resulted in death and 80% in disability. The study reported that 63% of the injuries were due to the negligence of a medical professional and that the overwhelming majority of those claims thought to be without merit did not result in compensation.
BOTTOM LINE: The
legal system works, and further tort reform, which erodes individual rights, is
not necessary to protect the medical community.
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